Solicitor Ali Hussain explains changes in law on FGM (Female Genital Mutilation) Protection Orders

As the school holidays begin, Bedfordshire Police have reported that a female genital mutilation protection order was obtained for a girl who was due to travel outside the UK.  The power to make such an order can be found under s.73 Serious Crime Act 2015 which has only recently come into force.

The Serious Crime Act makes provision for FGM protection orders in England and Wales and provides that the High Court or the family court may make an order (an “FGM protection order”) for the purposes of “protecting a girl against the commission of a genital mutilation offence” or for “protecting a girl against whom such an offence has been committed”. In deciding whether to make an order the court must have regard to all the circumstances including the need to secure the health, safety, and wellbeing of the girl to be protected. A ‘girl’ is defined in law to include a woman.

An FGM protection order may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate to protect the girl in question. This would ensure that the power to a make an FGM protection order is broad and flexible and enables the court to include whatever terms it considers necessary to protect the girl. Such terms might include, for example, provisions requiring a person to surrender his or her passport or any other travel document and/or the passport of the girl for whom the order is intended to protect, and prohibiting specified persons from entering into any arrangements, in the UK or abroad, for FGM to be performed on the person to be protected. Such terms may relate to: conduct within and outside England and Wales; to respondents who commit or attempt to commit an FGM offence against a girl; and to others who may become involved in other respects and include aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence or conspiring to commit or attempt to commit such an offence.

An FGM protection order may be made for a specified period or to continue indefinitely until varied or discharged. This would help to ensure that long-term protection from mutilation remains in place, for example, where the girl to be protected is very young.

The court may make an FGM protection order on an application by the person to be protected (the victim), a “relevant third party” (a person, or someone within a class of persons, specified by regulations without needing the leave of the court. The court may also make an FGM protection order on an application by ‘any other person’ with the leave of the court. This paragraph also provides for the court to make an order without an application being made to it, in certain other family proceedings before that court.

The Act makes provision for a court before which there are criminal proceedings for a genital mutilation offence to make an FGM protection order, without an application being made to it, if a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings. This would ensure protection for a victim or potential victim of FGM where a defendant is not convicted of the offence but it has emerged that there is a risk of action by the defendant to carry out, procure, abet or assist FGM against the victim (or a person other than the victim); or the defendant is convicted and there is such a risk.

An FGM protection order can be made in criminal proceedings to protect a girl at risk, whether or not the girl is the victim of the offence in relation to the criminal proceedings. For example, the younger sister of the victim of a genital mutilation offence could also be protected by the court in criminal proceedings.

Breach of an FGM protection order would be a criminal offence subject to a maximum penalty of five years’ imprisonment on conviction on indictment or a maximum of six months’ imprisonment on summary conviction. As an alternative to a prosecution, a breach of an FGM protection order may be dealt with by the civil route as a contempt of court punishable by up to two years’ imprisonment.

The Act also provides for ex-parte orders so to allow for the making of an FGM protection order without notice of the proceedings having been given to the respondent, where the court considers it just and convenient to do so. Such an order without notice may be appropriate where there is reason to believe that a respondent may seek to harm a potential victim or remove her from the jurisdiction if given notice of such a hearing or before an on notice hearing could be listed. If an order is made without notice, the respondent must be given an opportunity as soon as just and convenient, to make representations about the order at a return hearing on notice.

There is power for the variation and discharge of FGM protection orders. An order may be varied or discharged on an application by any party to the order; the girl being protected by the order; or any other person affected by the order. The court may also vary or discharge an order on its own initiative.

In the Act there are also provisions for arrest under warrant. It provides for an interested party to apply to the relevant judge for the issue of a warrant for the arrest of the person if the interested party considers that the person has failed to comply with an FGM protection order; or is otherwise in contempt of court in relation to such an order. This paragraph defines an interested party as the girl being protected by the order; the person who applied for the order or any other person (with leave).

The law makes provision about remand of someone arrested and also makes provision about medical examination and report under remand of such a person.

There are powers of the court in relation to contempt of court arising out of a person’s failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge.

The Act makes it clear that nothing affects any other protection or assistance available to a girl who is or may become a victim of an FGM offence. For example, there will be occasions where it is appropriate to have prohibited steps orders, non-molestation orders or other protective orders in relation to children in place, alongside FGM protection orders.